17 Fla. L. Weekly Supp. 622a
Online Reference: FLWSUPP 1708DUNCInsurance — Personal injury protection — Discovery — Medical records of nonparties — Statute requiring that physician preparing report at request of insurer maintain copies of all examination reports for three years does not require physician to produce reports — Even if statute required expert to produce reports, order compelling disclosure of records without notice to nonparty patients would violate privacy rights of nonparties — Abuse of discretion to strike expert witness in absence of finding that witness was in contempt or violated legitimate discovery order — Trial court further erred in failing to consider deposition testimony of improperly stricken expert in ruling on motion for summary judgment — Explanation of benefits — Entry of summary judgment in favor of medical provider as to insurer’s failure to provide EOB was error where there is no cause of action to enforce obligation to provide EOB
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. NDNC NEUROLOGICAL TREATMENT CENTER, INC., A/A/O CHEYENE DUNCAN, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-28452 CACE (07). March 31, 2010. Robert W. Lee, Judge. Counsel: Lara J. Edelstein, Office of the General Counsel, Trial Division, United Automobile Insurance Co., Miami, for Appellee. Stuart Yanofsky, Plantation.OPINION
(ROSENBERG, Judge.) THIS CAUSE comes before the court, sitting in its appellate capacity, upon the appeal by Appellant, United Automobile Insurance Company, of the trial court’s Final Judgment in Favor of the Plaintiff, Appellee, NDNC Neurological Treatment Center, Inc., a/a/o Cheyene Duncan.
On appeal, Appellant contends that the trial court erred in: (1) excluding the insurer’s expert witness absent a finding that the witness was in contempt or that he violated a discovery order; (2) granting summary judgment in favor of the provider where there was substantial impeachment of the treating physician in the filed deposition transcript to create an issue of fact; and (3) granting summary judgment in favor of the provider as to the failure to provide an EOB where there is no cause of action to enforce the insurer’s obligation to provide EOB.
This court must first point out that review of this case has been impeded by Appellee’s failure to file an answer brief, an omission that placed an undue burden on this court. See Title & Trust Co. of Fla. v. Salameh, 407 So.2d 1035, 1035-36 (Fla. 1st DCA 1981).1 Nevertheless, this court will analyze Appellant’s arguments upon the Initial Brief filed by Appellant and the record on appeal.
As to Appellant’s first argument, it appears that Appellee sought the records of the Appellant’s expert physician witness pursuant to section 627.736(7)(a), Florida Statutes, which provides, in part, as follows:
The physician preparing a report at the request of an insurer and physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection, or on behalf of an insured through an attorney or another entity, shall maintain, for at least 3 years, copies of all examination reports as medical records and shall maintain, for at least 3 years, records of all payments for the examinations and reports.
The fact that section 627.736(7)(a) requires a physician to maintain copies of all examination reports and records of all payments does not require the expert physician to produce the same or make them available for inspection. The 2003 amendment to section 627.736(7)(a) was done so based on a legislative finding that some insurers had pressured or directed IME doctors to change reports favorable to the insurers. See Final Report of Select Committee on Automobile/P.I.P. Reform, S. 40-5, 5th Sess., at 3 (2003). Section 627.736(7)(a) specifically provides that “[n]either an insurer nor any person acting at the direction of or on behalf of an insurer may materially change an opinion in a report prepared under this paragraph or direct the physician preparing the report to change such opinion.” As such, the purpose of the amendment was not to accommodate discovery requests for the purpose of impeaching the expert witness, but instead, was enacted to improve IME reporting.
Even assuming this court were to find that section 627.736(7)(a) does require Appellant’s expert physician witness to produce for inspection the IME reports and Peer Reviews for the last three years, this court would still be required to find that such an order departs from the essential requirements of the law pursuant to the holding in Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2d DCA 2008).2
In Graham, an automobile negligence action, a medical examination was performed on one of the plaintiffs pursuant to Florida Rule of Civil Procedure 1.360. The plaintiffs sought extensive discovery from the examining physician, including a printout of any and all depositions given by the physician in 2004, 2005 and 2006; a list of cases at which the examining physician testified at trial for those years, and the person or entity who requested his presence at trial; and, copies of any written reports the examining physician wrote as a result of a compulsory medical examination pursuant to rule 1.360 for those years. Id. at 933. The trial court compelled the examining physician to disclose reports from prior examinations of personal injury plaintiffs without notice to such nonparties and without adequate protection of their privacy rights. Id.
On appeal, the Second District examined section 456.057(7)3., Florida Statutes, which governs when medical records may be furnished, as follows: “3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.” Id. at 934.
Upon the Graham Court’s analysis of when medical records may be furnished, the Second District held that section 456.057(7)3. required proper notice to the nonparty patients, even if the indentifying information was redacted. Id. at 935. In quashing the discovery order, the Second District found that the trial court departed from the essential requirements of the law and would cause irreparable injury to the privacy rights of nonparties by compelling medical records belonging to the nonparties who have been given no notice and had no opportunity to be heard in the proceeding. Id. at 937.
On the record, it appears that the discovery request insisted upon by Appellee would have violated the privacy rights of nonparties. Despite that fact, the trial court nevertheless entered an order striking Appellant’s expert witness when such an objection was raised. On the facts here, it appears that the trial court abused its discretion in striking the insurer’s expert witness absent finding that the witness was in contempt or that he violated a legitimate discovery order.
Next, as Appellant’s expert witness was improperly stricken, the trial court further erred in failing to consider Appellant’s expert witness’ deposition testimony in ruling on Appellee’s motion for summary judgment.
The standard of review for orders granting summary judgment is de novo. Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004). An appellate court will affirm a summary judgment “only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id.
Here, where Appellant’s expert witness’ deposition testimony should have been considered, but was not, Appellee, who failed to file an answer brief despite being granted five extensions of time within which to do so, has failed to demonstrate that there is no genuine issue as to any material of fact, and that the moving party is entitled to a judgment as a matter of law. Accordingly, the order granting summary judgment of Count I of Appellee’s Compliant is reversed for further proceedings.
Finally, Appellant argues that the trial court erred in granting summary judgment in favor of Appellee as to Appellant to provide an EOB (Count II) where there is no cause of action to enforce the Insurer’s obligations to provide an EOB. This court agrees and reverses the trial court’s order granting summary judgment for further proceedings. See United Auto. Ins. Co. v. Coastal Wellness Center, Inc., 2010 WL 711795, 1 (Fla. 4th DCA 2010)(adopting the reasoning of United Automobile Insurance Co. v. A 1st Choice Healthcare Systems, 21 So.3d 124 (Fla. 3d DCA 2009)(construing section 627.736(4)(b), Florida Statutes (2004), as not imposing a firm deadline for providing an insured or assignee with an “explanation of benefits” (EOB)).
ORDER AND ADJUDGED that the trial court’s Final Judgment dated June 9, 2008 is hereby REVERSED for further proceedings. As Appellee is no longer the prevailing party the trial court’s award of attorney’s fees and costs is likewise REVERSED for further proceedings.
__________________
1Appellees have not filed a brief in this appeal. While the failure to file an answer brief does not constitute a “default,” nor a concession of error, such failure makes our task more difficult in determining the merit, vel non, of appellant’s position. If appellees do not contest it, one sentence to that effect would reduce our judicial labors considerably. See, e.g., PK Computers, Inc. v. Independent Travel Agencies of America, Inc. 656 So. 2d 254, 254 (Fla. 4th DCA 1995),
2Here, the trial court did not have the benefit of Graham when it rendered the final judgment in this case, as Graham was rendered about four months after the final judgment.
